Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Why the so-called "Mandate" is Not the Only -- or Even the Primary -- ACA Provision at Stake
On the New York Times Op/Ed page today, Professors Abbe Gluck and Michael Graetz express befuddlement and disappointment concerning DOJ's argument to the Court that the so-called "individual mandate" provision of the Affordable Care Act is not severable from the insurance nondiscrimination provisions of the Act, such that if the Court were to declare that the former is unconstitutional, the latter would be inoperative, as well.
"It is Congress, not the court," Gluck and Graetz write, "that has the constitutional power and responsibility to make difficult legislative policy decisions like these. By arguing against severability, the Obama administration . . . is urging the Supreme Court to abandon its tradition of judicial restraint, to ignore longstanding precedents and to undermine the separation of powers."
According to Gluck and Graetz, "It’s not clear why the Obama administration has chosen this course."
In those briefs the government agrees with the basic principles of severability and allocation of power that Gluck and Graetz advocate. The government stresses, for instance, that "when this Court invalidates a portion of a statute, it must retain those portions of the Act that are (1) constitutionally valid, (2) capable of functioning independently, and (3) consistent with Congress' basic objectives in enacting the statute," and that therefore in order to deem another provision inseverable from the invalid provision, "the Court should have clear evidence that Congress, faced with the unconstitutionality of one part of a statute, would have wanted some or all of the remaining parts struck down as well.” For those reasons, the government strongly contests the arguments of the respondents that the entire Act should fall if the Court holds that the insurance-maintenance provision (section 5000A) is unconstitutional.
However, as I explained in a post here a couple of days ago, one of the government's principal arguments in support of the constitutionality of section 5000A is that that provision was hardly a stand-alone objective of the enacting Congress; it was, rather, an ancillary provision, one that is necessary and proper to the effectuation of the central provisions of the Act, namely, the Guaranteed Issue and Community Rating provisions (the nondiscrimination provisions) that Gluck and Graetz--like the government -- quite understandably wish to preserve. Indeed, the government's substantive argument is that the GI and CR provisions will be counterproductive to the overall aim of the Act (universal access to affordable health care) -- because they will act as an incentive for individuals to buy insurance only when their health-care needs are acute and extensive, thus driving the cost of such insurance through the roof and eventually making it unavailable for everyone -- if they are not conjoined with the requirements of section 5000A.
It would be a bit difficult, to say the least, to make such an argument to the Court if the government were also to argue that the nondiscrimination provisions would continue to work just fine, standing alone.
Nor is this just a clever, after-the-fact lawyers' argument. It best describes what Congress actually did. The principal impetus behind the ACA was not a desire to "force people to buy a commercial prodyct," but instead the effort to establish the nondiscrimination rules themselves, in order to make health insurance, and thus health care, more affordable for all. Congress looked to the experience in the states for guidance, and it found that such nondiscrimination provisions led to a "death spiral" in those states where there wasn't an insurance-maintenance provision . . . but that in Massachusetts, where there was such a requirement, the nondiscrimination provisions were much more effective in accomplishing what they were designed to do.
Accordingly, Congress -- not the President, or DOJ, or the Court -- made the statutory finding (42 U.S.C. 18091(2)(I)) that:
Under [the nondiscrimination provisions], if there were no [insurance maintenance] requirement, many individuals would wait to purchase health insurance until they needed care. By significantly increasing health insurance coverage, the requirement, together with the other provisions of this Act, will minimize this adverse selection and broaden the health insurance risk pool to include healthy individuals, which will lower health insurance premiums. The requirement is essential to creating effective health insurance markets in which improved health insurance products that are guaranteed issue and do not exclude coverage of pre-existing conditions can be sold.
Gluck and Graetz thus are correct as a matter of interpretive principle, and DOJ agrees, that "it is Congress, not the court, that has the constitutional power and responsibility to make difficult legislative policy decisions like these." But Congress has made that choice here. DOJ's litigating position is simply a reflection of that entirely reasonable legislative judgment -- a judgment that provides one of the most powerful arguments for why section 5000A is constitutional, whatever one's views of the extent of Congress's Commerce authority.
NOTE: Just to be clear, the government's position in its severability briefs is that although the nondiscrimination provisions are not severable from section 5000A, that question is not justiciable in these cases--and therefore the Supreme Court should not resolve it even if it declares section 5000A to be unconstitutional, but should instead await a case in which some other plaintiffs, with standing to do so, challenge those provisions:
[I]f the Court were to hold the minimum coverage provision unconstitutional, such a holding would furnish no basis for the Court to consider the continued validity of myriad other provisions of the Act that do not apply to petitioners. Whether viewed as a matter of Article III and prudential standing, a limitation on the scope of equitable relief, application of the principle that facial challenges are disfavored, or simply a matter of judicial restraint, the Court should not consider the validity of provisions of the Act that are not directed to petitioners but instead affect numerous parties not before the Court.
* * *
With respect in particular to the guaranteed-issue and community-rating provisions that take effect in 2014, the United States is on record conceding their inseverability. That position presumably would itself have a significant impact on any future efforts to enforce or invoke those provisions in the event the Court invalidated the minimum coverage provision. If issues nevertheless did arise, they could be raised in a suitable action by a proper party. State petitioners, however, are not such parties.